Current through 2024-38, September 18, 2024
2.1
Voluntary Procedure. These
rules establish a voluntary procedure that is available to covered entities.
See
22 M.R.S.A.
§1843(2).
2.2
Authority. A covered entity
may negotiate and enter into a cooperative agreement with another covered
entity and may file an application for a certificate with the department
pursuant to these rules. See
22 M.R.S.A.
§1844(1).
2.3
Compliance with Other Laws and
Rules. These rules do not exempt covered entities from compliance with
laws governing certificates of need or other applicable federal and state laws
and rules. See
22 M.R.S.A.
§1849(3).
2.4
Coordinated Negotiation and
Contracting with Payors or Employers Prohibited. The department may not
issue a certificate for a cooperative agreement that allows coordinated
negotiation and contracting with payors or employers unless such negotiation
and contracting are ancillary to clinical or financial integration. See
22 M.R.S.A.
§1844(5).
2.5
Validity: Lawful Conduct.
Notwithstanding 5 M.R.S.A chapter 10, 10 M.R.S.A chapter[DEGREE]201, or any
other provision of law:
2.5.1 A cooperative
agreement for which a certificate has been issued is a lawful
agreement.
2.5.2 If the parties to
a cooperative agreement file an application for a certificate with the
department, the conduct of the parties in negotiating and entering into a
cooperative agreement is lawful conduct.
2.5.3 These rules do not provide immunity to
any person for conduct in negotiating and entering into a cooperative agreement
for which an application for a certificate is not filed. See
22 M.R.S.A.
§1849(1).
2.6
Invalid Cooperative
Agreement. In an action by the Attorney General under Section 7.4 of
these rules, if the Superior Court determines that the COPA applicants have not
established by a preponderance of the evidence that the likely benefits
resulting from a cooperative agreement outweigh any disadvantages attributable
to any potential reduction in competition resulting from the agreement, the
cooperative agreement is invalid and has no further force or effect when the
judgment becomes final after the time for appeal has expired or the judgment of
the Superior Court is affirmed on appeal. See
22 M.R.S.A.
§1849(2).
2.7
Contract Disputes. A
dispute between parties to a cooperative agreement concerning its meaning or
terms is governed by the normal principles of contract law. See
22 M.R.S.A.
§1849(4).
2.8
Withdrawal of COPA Application.
The parties to a cooperative agreement may withdraw their COPA
application and thereby terminate all proceedings under these rules as follows:
2.8.1 Without the approval of the department,
any party or the Superior Court at any time prior to the filing of an answer or
responsive pleading in a court action under 7.4 of these rules, or prior to
entry of a consent decree under Section 7.9 of these rules; or
2.8.2 Without the approval of the department
or any party at any time prior to the issuance of a final decision by the
department under Section 5.3 of these rules, if a court action has not been
filed under Section 7.4 of these rules. See
22 M.R.S.A.
§1844(4)(E).
2.9
Termination of
Cooperative Agreement: Surrender of the Certificate. These rules do not
prohibit certificate holders from terminating their cooperative agreement by
mutual agreement; by consent decree or court determination; or by surrendering
their certificate to the department.
2.9.1 Any
certificate holder that terminates the agreement must:
2.9.1.1 file a notice of termination with the
department within 30 calendar days after the termination date;
2.9.1.2 surrender the certificate to the
department; and
2.9.1.3 submit
copies to the Attorney General and the Governor's Office of Health Policy and
Finance or its successor at the time the notice of termination is submitted to
the department. See
22 M.R.S.A.
§1849(5).
2.10
Intervention. The Office of the Attorney General and the Governor's
Office of Health Policy and Finance or its successor may intervene as a right
in any proceeding before the department that is governed by these rules.
2.10.1 Except as provided in Section 2.10 of
these rules, intervention is governed by the provisions of
5 M.R.S.A.
§9054. Except as provided in Section
2.10 of these rules, any person requesting intervention must do so within ten
(10) business days of the date of publication of the public notice set forth in
Section 3.4 of these rules. See
22 M.R.S.A.
§1844(6).
2.11
Fees
2.11.1
Application Fee. The
application fee for a certificate is governed by these rules.
2.11.1.1 The application fee for a
certificate that involves a merger of 2 or more hospitals, each of which has 50
or more beds, is $10,000.
2.11.1.2
The application fee is $2,500 for a COPA application filed by health care
providers, or hospitals that are not subject to the $10,000 fee in Section
2.11.1.1 of these rules.
2.11.1.3
The department shall deposit all funds received under Sections 2.11.1.1 and
2.11.1.2 of these rules into a nonlapsing dedicated revenue account to be used
only by the Attorney General for the payment of the cost of experts and
consultants in connection with reviews conducted pursuant to these rules. See
22 M.R.S.A.
§1851.
2.11.2
Continuing Supervision Fee.
The department may include a condition in the issued certificate that
requires the certificate holders to submit fees sufficient to fund expenses for
consultants or experts necessary for the continuing supervision required under
Section
6 of these rules.
2.11.2.1 The fees must be paid at the time of
any review conducted under Section
6 of these rules.
2.11.2.2 The total amount charged to the
certificate holders for continuing supervision may not exceed $5,000 for
mergers involving hospitals with 50 or more beds, and $2,500 for all other
cooperative agreements. See
22 M.R.S.A.
§1844(5)(D).
2.11.2.3 The department shall deposit all
funds received under Section 2.11.2 of these rules into a nonlapsing dedicated
revenue account to be used only by the Attorney General to fund expenses for
consultants or experts necessary for the required continuing supervision. See
22 M.R.S.A.
§1851.
2.11.3
Annual Hospital Assessment
Fee. Except for state-operated mental health hospitals, any hospital
licensed by the department is subject to an annual assessment fee pursuant to
these rules.
2.11.3.1 The amount of the
assessment fee must be based upon each hospital's gross patient service
revenue.
2.11.3.2 The aggregate
amount raised by assessment fees may not exceed $200,00 for any fiscal
year.
2.11.3.3 Each hospital's
annual assessment fee is a prorated amount of the aggregate amount that may be
raised by assessment fees during any fiscal year, in compliance with Section
2.11.3.2 of these rules, based on each hospital's gross patient service
revenue.
2.11.3.4 The department
shall deposit funds collected under Section 2.11.3 of these rules into a
dedicated revenue account. Funds remaining in the account at the end of each
fiscal year do not lapse but carry forward into subsequent years. Funds
deposited into the account must be allocated to carry out the purposes of these
rules. See
22 M.R.S.A.
§1850.
2.12
Other Charges
2.12.1
Copy Charge. A
reasonable amount may be charged by the department to any person requesting a
copy of any part of the public record including the application and the letter
of intent to cover the department's copying and postage costs.
2.12.2
Cost of Public Notices.
Applicants or certificate holders are responsible for reimbursing the
department for costs, not to exceed $3,000 per COPA application or issued
certificate per fiscal year, associated with public notices, including notice
of the filing of the letter of intent, if applicable; filing of the
application; and notice of a public hearing, if applicable.
2.12.3
Additional Supervisory
Activities. Certificate holders are responsible for costs, not to exceed
$3,000 per issued certificate per fiscal year, associated withadditional
supervisory activities.
2.12.4
Public Hearing. Applicants or certificate holders are responsible
for costs, not to exceed $3,000 per COPA application or issued certificate per
fiscal year, associated withpublic hearings, including hearings for additional
supervisory activities.
2.12.5
Transcription of Public Hearing Record. The electronic recording
of a public hearing, if held, shall be transcribed if the department's final
decision is appealed to the court system. The transcription shall be paid for
by the person requesting the appeal unless a court orders otherwise.
2.12.6
Associated Costs.
Applicants and certificate holders are responsible for non-personnel
related department costs, not to exceed $3,000 per COPA application or issued
certificate per fiscal year, associated with carrying out the provisions of
these rules,
2.13
Record Keeping. The department shall maintain records of all
applications for a certificate of public advantage, together with the records
of all submissions, comments, reports and department proceedings with respect
to those applications, certificates approved by the department, continuing
supervision and any other proceedings under these rules. See
22 M.R.S.A.
§1846.
2.14
Interested Parties Mailing List.
The department shall maintain an interested parties mailing list of
persons who request notification of COPA activities and copies of COPA
documents. See
22 M.R.S.A.
§§1844(3)(B) and
(4) (F). The following information must be
submitted on a department approved form when requesting placement on the COPA
interested parties mailing list:
2.14.1 Name
and mailing address;
2.14.2 Name of
business or affiliation, if any;
2.14.3 Telephone number; and facsimile
number;
2.14.4 Email address;
and
2.14.5 any other contact
information requested by the department.
